However eagerly anticipated it may have been, the report prepared by public-agency lawyer Michael Jenkins can’t be seen as telling the whole story about the involvement of our local politicians and the Alameda firefighters’ union in the selection of the City’s new fire chief.
That may not be entirely Mr. Jenkins’s fault: although he managed to interview 22 witnesses, he wasn’t able to obtain all of the relevant evidence. In fact, several of the key players – state Assemblyman Rob Bonta and, it appears, two IAFF Local 689 leaders – refused to cooperate with the investigation.
But Mr. Jenkins also ignored evidence available to him. For reasons the report does not specify, he chose not to listen to the recording of a crucial meeting held by Council members Jim Oddie and Malia Vella with City Manager Jill Keimach.
Notwithstanding these gaps in the evidentiary record, the Jenkins report does render a verdict on the culpability of the two Council members. As to Mr. Oddie, the report states a definitive conclusion: “Councilmember Oddie violated Section 7-3 of the Alameda City Charter by attempting to influence the City Manager’s appointment [of the fire chief].” As to Ms. Vella, the conclusion is more equivocal: “[O]n balance, Vella’s conduct fell short of attempting to interfere with Keimach’s performance of her job or attempting to influence the appointment.”
Beyond those headlines, the Jenkins report also reveals previously undisclosed conduct by Assemblyman Bonta, who warned Ms. Keimach of adverse consequences in Sacramento if she refused to appoint the firefighters’ union candidate, and by Councilwoman Marilyn Ezzy Ashcraft, who resisted entreaties by IAFF Local 689 leaders to join the campaign to get the job for the union’s pick.
Also enlightening is the Jenkins report’s detailed portrait of the maneuvering by the firefighters’ union leaders, particularly president Jeff DelBono, to control the selection of the City’s new fire chief. (The report is heavily redacted; we’ll identify Capt. DelBono by name when the context makes it clear he is the person referred to.) Staunch City staffers may have insisted, “Jeff DelBono doesn’t run the City; Jill does,” but the report shows that the IAFF Local 689 president did everything in his power to prove that statement wrong. “From the get-go,” it states, Capt. DelBono “asserted himself into the process with persistence.”
We’ll start our commentary there. (For this column, we’ll be quoting from the “Final Report” dated January 30, 2018, and released last Wednesday, as it was amended by an undated document entitled, “Errata to January 30, 2018 Investigation Report.”) Among the tactics employed by the firefighters’ union leaders were these:
- On April 19, two days after Ms. Keimach told him that she intended to “open up” the recruitment for the fire chief job, Capt. DelBono informed her that, “We have someone that I think you will like and is very qualified.” This turned out to be Domenick Weaver, the immediate past president of IAFF Local 689 who is now a fire captain. (Typically, a captain supervises a three-person crew.) Capt. Weaver later told a witness that he never intended to apply to be fire chief. “They [i.e., the union leaders] came to me,” he said.
- On June 26, Capt. DelBono asked Ms. Keimach to meet with him. At the meeting, he said he had “heard” that Ms. Keimach was “actively recruiting” a candidate from outside the Alameda fire department. Keimach told him she merely planned to send the man a recruitment brochure. Capt. DelBono warned Ms. Keimach that she “should know” that “he could send out a statewide notice that no one needed to apply for the” position.
- After the recruitment process officially began on July 3, IAFF Local 689 leaders, including Capt. DelBono, “embarked upon a campaign to solicit support” for Capt. Weaver, making “numerous calls” and asking for letters of recommendation from “various people,” including politicians and labor leaders. One was Councilman Oddie, who agreed to submit a letter. Another was Vice Mayor Vella, who did not. The application package for the fire chief’s job didn’t request letters of recommendation, but Ms. Keimach ended up receiving 17 missives endorsing Capt. Weaver.
- On July 10, Councilwoman Ashcraft met with Capt. DelBono at his request. He told her that the union “wanted Weaver selected as Fire Chief” and “wanted her to support Weaver.” Ms. Ashcraft demurred. “Cream will rise to the top,” she said. After the meeting, Ms. Ashcraft got a call from her political consultant, Doug Linney, who reported that “IAFF had reached out to him [and] told him Councilmember Ashcraft ‘was not helping IAFF and was being very difficult.’”
- Following up on that meeting, Capt. DelBono arranged to meet with Councilwoman Ashcraft again on August 9. At this meeting he urged Ms. Ashcraft to adopt “fire values,” and emphasized the importance of hiring from within. When Ms. Ashcraft pointed out that three current fire department employees had applied for the job, Capt. DelBono told her Capt. Weaver was the “endorsed candidate.”
- IAFF Local 689 leaders, including Capt. DelBono, attempted to “dissuade other potential internal candidates” – i.e., fire department employees other than Capt. Weaver – from seeking the chief’s job. On August 1, a union official admonished a potential applicant not to apply for the job and “implied he might suffer career-related consequences for competing with” Capt. Weaver. The next day, five members of the department sent the applicant text messages or emails making the same point.
- As the selection process went forward, the IAFF Local 689 leaders regularly touched base with Vice Mayor Vella, whom Capt. DelBono “lightheartedly” referred to as “one of his children.” In addition to urging Ms. Vella to meet with Capt. Weaver (she says she declined), Capt. DelBono called her at night, “demanding explanations for her actions or inactions.”
- Capt. DelBono was a member of one of the two panels set up to interview the fire-chief candidates. During the second-round interview, he was the only panelist to rank Capt. Weaver first. “I’m only doing my job,” he told the other panel members.
- On September 17, Capt. DelBono invited Ms. Keimach to attend a firefighters’ union executive board meeting on September 20, the evening after the final candidate interviews were scheduled. At the meeting, the board members took turns stating why Capt. Weaver was the “best choice” for the fire chief’s job. Three of them also dissed the candidacy of the other finalist from the fire department.
From the entire report, one is left with the unmistakable impression that the leaders of the Alameda firefighters’ union, and Capt. DelBono specifically, were playing a particularly aggressive game of hardball to get their hand-picked candidate made fire chief. Mr. Jenkins takes pains to point out that none of the actions by the union leaders was illegal. “There are no legal constraints on IAFF’s attempts to influence an appointment [of a fire chief],” he writes. “Thus, IAFF leadership violated no law by lobbying Keimach in support of Weaver. . . . Likewise, IAFF leadership violated no law by advocating Weaver’s candidacy to Alameda Councilmembers.” And yet . . . is this the role we want those representing our firefighters – who are, after all, City employees – to play in personnel decisions? To the Merry-Go-Round at least, bullying tactics like those employed by Capt. DelBono and his minions belong more on the playground than in the political arena.
And now for the politicians.
First, a word about the investigator’s mission. Since determining what Mr. Oddie and Ms. Vella said to others, and what others said to them, was crucial to evaluating whether either of them violated the Charter, Mr. Jenkins was called upon to act, like a juror, as fact-finder. Written communications posed no evidentiary problem. But oral communications were another matter. Where all of the parties to a multi-party conversation gave interviews and agreed about the contents, Mr. Jenkins readily could find that certain statements in fact were made. But where the parties disagreed, he had to decide which version to accept. And where one party refused to cooperate, he had only half of the story to go on.
For one key communication, Mr. Jenkins could have avoided the need to choose between two competing versions by resorting to “extrinsic evidence.” We’re referring, of course, to the recording made by Ms. Keimach of her August 16 meeting with Mr. Oddie and Ms. Vella. The online apologists for the two Council members already have declared that the recording was illegal and that the “exclusionary rule” barred the investigator from listening to it. The latter assertion is simply wrong, and Mr. Jenkins himself makes no such claim. The legal issues raised by the recording now have been referred to Alameda County District Attorney Nancy O’Malley, who must determine, among other things, whether Ms. Keimach recorded the meeting “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime” of extortion or bribery.
The Jenkins report contains a few facts Ms. O’Malley might want to consider in evaluating Ms. Keimach’s state of mind.
According to the report, from the beginning of the selection process, Ms. Keimach was “apprehensive” that the Council members who owed their seats to the firefighters’ union would try to influence her appointment of the new fire chief. This was not paranoia: in fact, there was an established track record of Council members Oddie, Vella and Ashcraft doing the bidding of organized labor in City personnel matters. The unions wanted the City to hire only sworn firefighters – i.e., union members – for the new fire prevention bureau. Done, by a 3-2 Council vote. The unions wanted to require the golf-course operator to use only union construction workers on its renovation project. Done, by closed-session Council “direction.” Moreover, according to the report, Ms. Keimach’s apprehensions were quickly confirmed once the process began. Ms. Ashcraft explicitly told her that she was being lobbied by Local 689 leaders to get her to push Capt. Weaver for the chief’s job. Mr. Oddie’s “letter of recommendation” made it abundantly clear what result he sought.
Under these circumstances, was it “reasonable” for Ms. Keimach to suspect, when Mr. Oddie and Ms. Vella requested the August 16 meeting, that the two of them might try to turn the screws on her? That will be up to Ms. O’Malley to say.
For the conclusion that Mr. Oddie violated the Charter by attempting to influence the appointment of the fire chief, the Jenkins report begins by noting that the Councilman was aware of the Charter prohibition. It then cites four specific items of supporting evidence:
- Mr. Oddie sent a letter on City letterhead “strongly recommending” that Ms. Keimach appoint Capt. Weaver as fire chief. Mr. Oddie did not deny sending the letter, and Mr. Jenkins rejected the Councilman’s attempt to characterize it as a “routine character reference.”
- Mr. Oddie told Police Chief Paul Rolleri that there already were two Council members ready to fire Ms. Keimach if she didn’t appoint Capt. Weaver. Although Mr. Oddie never publicly denied making this statement, he did deny it to the investigator. The Jenkins report doesn’t expressly find that the Councilman was untruthful, but it goes out of its way to describe Chief Rolleri as “a law enforcement officer with over five years of law enforcement experience and with the requisite training” to offer testimony “to prove the truth of the matter” in a grand-jury proceeding.
- Mr. Oddie “did not acknowledge” to Rod Gould, the management consultant hired by the City to assist with performance reviews, “any significant constraint on his right to go beyond merely letting the City Manager know of his positive views of the fire union’s preferred candidate.” This may seem like a small point, but the report notes that Mr. Gould was sufficiently concerned about “how invested in the outcome of the City Manager’s decision Mr. Oddie was” that he felt the need to bring the matter to the attention of the City Attorney.
- At the August 16 meeting with Ms. Keimach, Mr. Oddie brought up the “Raymond Zack incident” – where union leaders sought to blame the then-city manager for the drowning death of a man at Crown Beach rather than the firefighters and cops who failed to rescue him – “suggesting a similar type of backlash” if Ms. Keimach didn’t appoint Capt. Weaver. In addition, Mr. Oddie again “express[ed] his preference” for the union’s pick and criticized City staff and Ms. Keimach for “being underwhelmed” by Capt. Weaver’s credentials.
This last evidentiary finding is perhaps the most significant, because it shows that, having chosen not to listen to the recording, Mr. Jenkins resolved the credibility contest between Mr. Oddie and Ms. Keimach about the August 16 meeting in the City Manager’s favor. The chronological section of the report recounts the Councilman’s own innocuous description of the event – he just “wanted to make sure that Weaver got a fair shake” – but his interpretation isn’t the one found in the conclusion. Instead, the summary of supporting evidence tracks Ms. Keimach’s version about Mr. Oddie’s statements almost exactly.
When the report turns to Ms. Vella, the analysis is less systematic than it was for Mr. Oddie. Plainly, Mr. Jenkins was impressed that Ms. Vella didn’t do the same things Mr. Oddie did: She didn’t write a letter of recommendation for Capt. Weaver. (Indeed, Mr. Jenkins accepts her assertion that she actually declined the request for a letter.) She didn’t brag to Chief Rolleri that there already were two votes to fire Ms. Keimach if the City Manager didn’t appoint Capt. Weaver. And, rather than alarm the management consultant by offering an overly expansive view of a Council member’s appropriate role in the selection process, she sought Mr. Gould’s advice about “crossing the line.” All of these differences positively affected Mr. Jenkins’ conclusion about Ms. Vella’s culpability. More importantly, he appears to have resolved the credibility contest between the Vice Mayor and the City Manager in Ms. Vella’s favor.
The chronological section of the report recounts Ms. Keimach’s version of Ms. Vella’s conduct at the August 16 meeting: Ms. Vella “expressly advocated” for the firefighters’ union’s pick. She emphasized that “it was important” to hire Capt. Weaver in order to “avoid a morale issue” and told Ms. Keimach that if she hired Capt. Weaver, “things would go smoothly” and she “would have labor peace.” But if she didn’t, Ms. Vella was “worried about what would happen.” Had Mr. Jenkins accepted this testimony at face value, he would have had to conclude that Ms. Vella was as guilty as Mr. Oddie of attempting to twist Ms. Keimach’s arm.
But Ms. Keimach’s version doesn’t make it into the section of the report in which Mr. Jenkins pronounces judgment. Instead, we read there that Ms. Vella “adopted a measured approach in her communications with” Ms. Keimach in which she communicated “primarily” that she “wanted to be fair” and that Capt. Weaver “should be given a fair shot at the position.” (Note how similar this statement is to what Mr. Oddie asserted he said). Indeed, she “made a point” of saying that the appointment was Ms. Keimach’s decision. If this in fact is all that Ms. Vella said and did, one can well understand why Mr. Jenkins decided that, “on balance, Vella’s conduct fell short of” violating the Charter.
There is no point in speculating about why Mr. Jenkins appears to have accepted Ms. Vella’s description of statements made to Ms. Keimach and rejected Mr. Oddie’s. Since the interviews were conducted in private, the investigator alone was in a position to evaluate the demeanor of the two Council members and other factors relevant to their credibility. The rest of us won’t get that chance unless and until they swear an oath and take the stand in a courtroom open to the public.
Finally, the Bonta and Ashcraft stories.
On September 15, Ms. Keimach and three Council members, including Ms. Ashcraft and Ms. Vella, were attending a League of California Cities conference in Sacramento. Assemblyman Bonta texted Ms. Vella requesting that the Alameda delegation come to his office before they left town. Ms. Vella called Ms. Keimach, who was driving home separately, to relay Mr. Bonta’s request. Ms. Keimach twice asked what the Assemblyman wanted to talk about. Ms. Keimach will know, Ms. Vella quoted Mr. Bonta as saying.
The meeting didn’t take place. But the next business day, Mr. Bonta called Ms. Keimach directly. He said he wanted to be sure that Ms. Keimach had received his letter of recommendation for Capt. Weaver. Ms. Keimach said she had and asked if this was the reason for requesting a meeting in Sacramento. The Assemblyman replied that he wanted to talk with her before the final interviews for the job occurred. He then told Ms. Keimach that “Weaver was good because he could get ‘boots on the ground’ for any campaign that is coming along through his firefighters.” When the City Manager protested that she was not making a political appointment, Mr. Bonta reminded her of a recent bill he had helped to pass and told her that “the City would need Weaver as Fire Chief if it wanted legislation like that to pass; he did not think similar bills will pass without Weaver being Fire Chief.”
Later on in the chronology, the report provides a coda to the Bonta story. The Assemblyman made an appearance at the October 17 Council meeting to praise Mr. Oddie and Mr. Vella. Having done so, Mr. Bonta cautioned that the “focus should be on the will of the people, not on political witch hunts or self-serving political attacks.”
We’ve already related part of the Ashcraft story as described in the Jenkins report: the July 10 meeting at which Capt. DelBono told her the firefighters’ union wanted her to support Capt. Weaver; his follow-up call to her political consultant complaining that she was “being very difficult,” and the August 9 meeting at which Capt. DelBono urged her to adopt “fire values.” The Jenkins report also discloses that an IAFF Local 689 official asked Ms. Ashcraft to write her own letter of recommendation for Capt. Weaver, and that one of the candidates from the fire department, apparently Capt. Weaver himself, met with her personally to press his case. Ms. Ashcraft declined to write the letter, and, in response to the candidate’s description of the fire chief’s job as being the “public face” of the department, she told him “the job was so much more” than that.
Based on this evidence, Mr. Jenkins readily absolved Ms. Ashcraft of any Charter violation: “Councilmember Ashcraft was forthright with [the IAFF Local 689 leaders] about how far she was prepared to go and was scrupulous not to influence Keimach’s decision.”
The Jenkins report was only made available to the public last Wednesday, but Council has had it since January 30. Thus far, the body has taken no action against any Council member in response to the report, and we’re not holding our breath waiting for them to do so. It would be the height of chutzpah for Mr. Oddie, or even Ms. Vella, to channel Donald Trump and demand a declaration of innocence from the investigator. Even if such a demand was made, we can’t imagine Mr. Jenkins going along. By the same token, we don’t expect that a motion to refer the Jenkins report to the Alameda County grand jury for further review would pass, especially since Mr. Oddie and Ms. Vella have decided that it is perfectly appropriate to vote on matters in which their own conduct is at issue. Indeed, we wouldn’t even bet on a slap on the wrist for Mr. Oddie.
For any Council member to suffer any consequences from the Jenkins report, it will have to be the voters who impose them.
January 30, 2018 “Final Report”: Final Report – Redacted for release 5-2-18 – OCR (1-30-18)
“Errata to January 30, 2018 Investigation Report”: Final Report – Redacted for release 5-2-18 – OCR (errata)